November 24, 2024

DealBook: Heinz Case May Involve a Side Bet in London

Regulators have escalated an investigation into suspicious trades placed ahead of the $23 billion takeover of H. J. Heinz, focusing on a complex derivative bet routed through London, according to two people briefed on the matter.

The development builds on a recent regulatory action mounted against a Goldman Sachs account in Switzerland that bought Heinz options contracts. It also comes a week after the Federal Bureau of Investigation said it opened a criminal inquiry.

An unusual spike in trading volume in Heinz options a day before the deal was announced first attracted investigators. The Securities and Exchange Commission is also examining fluctuations in ordinary stock trades. The Financial Industry Regulatory Authority, Wall Street’s self-regulatory group, recently referred suspicious stock trades to the S.E.C., a person briefed on the matter said.

Now the S.E.C. is looking into a more opaque corner of the investing world, examining a product known as a contract-for-difference, a derivative that allows investors to bet on changes in the price of stocks without owning the shares. Such contracts are not regulated in the United States, but are popular in Britain. Regulators there recently opened an inquiry into the Heinz trades, one of the people briefed on the matter said.

The expansion of the Heinz investigation illustrates the growing challenges facing American regulators. Charged with policing the American exchanges, authorities increasingly find themselves having to hunt through a dizzyingly complex global marketplace.

After a number of prominent crackdowns on insider stock trading, a campaign that scared the markets, investors are seeking subtler and more sophisticated tools to seize on confidential tidbits. Trading operations also flocked overseas, a careful move that forces the S.E.C. to navigate a maze of international regulations before identifying suspect traders.

The Heinz case illustrates the shift, as the S.E.C. relies on Swiss authorities to expose the trader behind the Heinz options bets.

The suspicious options trades were routed through a Goldman Sachs account in Zurich, where laws prevent the firm from sharing details of the account holder’s identity. In a complaint filed two weeks ago, the S.E.C. froze the account of “one or more unknown traders.” A federal judge upheld that freeze last week, a move that will prevent the traders from spending their winnings or moving the money.

The series of well-timed options trades, bets that produced $1.7 million in potential profits, came just a day before Berkshire Hathaway and the investment firm 3G Capital announced that they had agreed to buy the ketchup maker. News of the deal sent the company’s shares, and the value of the options contracts, soaring.

The S.E.C. called the trading “highly suspicious,” given that there was scant options trading in Heinz in previous months.

“Irregular and highly suspicious options trading immediately in front of a merger or acquisition announcement is a serious red flag,” Daniel M. Hawke, head of the commission’s market abuse unit, said recently.

While the identity remains a secret, the account holder is a Goldman private wealth management client, according to a person briefed on the matter who was not authorized to speak on the record. Goldman executives in Zurich know the identity of the person, but laws prohibit those executives from sharing the name with American regulators and even Goldman executives outside of Switzerland.

Finma, the Swiss regulator, is the gatekeeper for American regulators. The S.E.C. contacted Finma in an effort to learn more about the trading, and the Swiss regulator has promised to help. It could take weeks to identify the traders.

Goldman has hired outside counsel to advise it on the situation, according to people briefed on the situation who were not authorized to speak on the record. The bank, which is not accused of wrongdoing, is cooperating with the investigation.

An S.E.C. spokesman declined to comment.

The agency’s inquiry may cast a cloud over the Heinz deal. After the traders are identified, the focus will turn to the insiders who had information on the deal and could have leaked details. Dozens of people had confidential information about the deal, including bankers, lawyers and executives for both the buyers and the seller.

As the agency continues to build its case against the options trades, it also is examining suspicious contracts-for-difference.

Investors increasingly favor the contracts because they require little capital investment and can be traded on margin. They are popular on the London Stock Exchange, where regulators are now focusing some attention.

In essence, the derivatives contracts are a side bet on the price of a stock. They have drawn criticism for being opaque, in part because users are not actually trading the shares of a company, but rather a contract linked to those shares.

Regulators have examined the use of the contracts before when accusations of insider trading have arisen. In 2008, the British Financial Services Authority fined an investor for market abuse, saying the investor had used a contract-for-difference to profit from inside information on the Body Shop, a retailer. The person was making a bet in this case that the shares would fall in value.

Despite the focus on such complex products in the Heinz case, the S.E.C. is also examining more mundane activity in equity trades ahead of the deal.

Finra is helping the agency build its investigation. The group’s Office of Fraud Detection and Market Intelligence is coordinating with the S.E.C.

A Finra official declined to comment on Wednesday.

Article source: http://dealbook.nytimes.com/2013/02/27/heinz-case-may-involve-a-side-bet-in-london/?partner=rss&emc=rss

Economic Scene: When Privatization Works, and Why It Doesn’t Always

Ten years ago, BP was the darling of the energy world — the unprofitable duckling transformed by privatization under the government of Margaret Thatcher into a highly profitable swan.

The London civil servants of the 1960s and ’70s who all but ignored profitability as they issued directives across British Petroleum’s bloated corporate network were replaced by highly motivated managers who were rewarded for cutting costs, reducing risk and making money. The company’s more incongruous businesses — food production and uranium mines, for instance — were sold. Payroll was cut by more than half. Oil reserves jumped. The time it took to drill a deepwater well plummeted. Profits soared.

But then, in 2005, a BP refinery in Texas City blew up, killing 15 and injuring around 170. In 2006, a leak in a BP pipeline spilled hundreds of thousands of gallons of oil in Prudhoe Bay, Alaska. And in 2010, an explosion on the Deepwater Horizon oil rig killed 11 and resulted in the biggest offshore oil spill in the history of the United States. These days, BP’s stock trades about 25 percent below where it was before the disaster off the coast of Louisiana, about the same place it was a decade ago.

BP’s bumpy ride is recorded in “The Org: The Underlying Logic of the Office,” a compelling new book by Ray Fisman, a professor at Columbia Business School, and Tim Sullivan, the editorial director of Harvard Business Review Press. “The Org” aims to explain why organizations — be they private companies or government agencies — work the way they do.

The book offers telling insight on a topic that has ebbed and flowed across the world over the last 30 years, as governments of all stripes have set out to privatize state-owned enterprises and outsource services — what does the private sector do better than government, and what does it do worse? Long dormant in the United States, the debate has acquired new urgency as governments from Washington to statehouses and city halls around the country consider privatizing everything from Medicare to the management of state parks as a possible solution to their budget woes. One of the authors’ chief insights is that every organization faces trade-offs — inherent conflicts between competing objectives. The challenge is to manage them. This is way more difficult than it sounds.

While in government hands, British Petroleum paid too little attention to profitability, constrained by its need to please elected officials who often cared more about keeping energy cheap and employment high. But in private hands, it may have cared about profits far too much, at the expense of other objectives. “BP veered from being a company that made sure nothing blew up to one focusing on cost-cutting at all costs,” Professor Fisman said.

The success or failure of an organization often depends on whether it can clearly identify its goals and align the interests of managers and employees to serve them. Yet whatever reward structure an organization picks can skew incentives in an undesirable way.

“The Org” tells us of the sociologist Peter Moskos, who joined the Baltimore police force to study police behavior. The police hierarchy demanded arrests, so police officers arrested people: 20,000 in one year in the Eastern District alone, out of a local population of 45,000. One officer set a record by locking up people for violating bicycle regulations. Unsurprisingly, perhaps, Baltimore’s murder rate continued to climb.

“The more we reward those things that we can measure, and not reward the things we care about but don’t measure, the more we will distort behavior,” observed Burton Weisbrod, a professor of economics at Northwestern University who was a pioneer in research on the comparative behavior of nonprofit institutions, corporations and government organizations. As Professor Fisman and Mr. Sullivan put it: “If what gets measured is what gets managed, then what gets managed is what gets done.”

Rewarding teachers for how well their students perform on standard math and reading tests will encourage lots of teaching of reading and math, at the expense of other things an education might provide. Private prison operators who bid for government contracts by offering the lowest cost per inmate will most likely focus on cutting costs rather than tightening security. Unsupervised apple pickers who are paid by the apple will probably pick them off the ground.

This insight is important to the debate over the competence of public and private organizations because it underscores a significant difference in how they meet their goals. Profit is one of the most potent incentives known to man — a powerful tool to align managers’ interests with corporate goals. But it also has drawbacks. With earnings as the overriding, nonnegotiable priority, private enterprise often has little wiggle room to handle the tension between conflicting objectives.

There are instances in which privatization can help achieve broad social goals. After Argentina privatized many of its municipal water supply systems in the 1990s, investment soared, the network expanded into previously underserved poor areas and the number of children dying of infectious and parasitic diseases tumbled. (Most water companies were nonetheless renationalized by a later government.)

Still, our recent memory of mortgage banks blindly offering risky mortgages to shaky borrowers and bundling them into complex bonds to sell to unwary investors should dispel the notion that the profit motive inevitably aligns incentives in a socially desirable way.

The pursuit of financial rewards, by private companies or even nonprofit organizations, can directly undermine public policy goals.

A recent study found that private universities and colleges collect higher fees from poor students who receive Pell Grants, absorbing over half the value of federal aid. Public colleges, by contrast, do not discriminate against those who get aid.

This suggests a good rule of thumb to determine when a private company will outperform the public sector: if the task is clear-cut and it’s possible to define concrete goals and reward those who meet them, the private sector will probably do better. “If I can write a perfect contract in which I pay for a concrete observable outcome, can rule out cream-skimming and can ensure the measure is not gamed, there is no reason that the private sector can’t do it better,” Professor Fisman said.

But if the objectives are complex and diffuse — making it difficult to align profit with goals without undermining some other desirable outcome — the profit motive could well make conflicts more difficult to manage. In these cases, privatization is probably not the best solution. In their rush to save money by outsourcing services, governments might forget that.

E-mail: eporter@nytimes.com;

Twitter: @portereduardo

Article source: http://www.nytimes.com/2013/01/16/business/when-privatization-works-and-why-it-doesnt-always.html?partner=rss&emc=rss